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National Forests and NEPA Compliance

  Distributed to TAP-RESOURCES, a free Internet Distribution List
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  January 24,1996
  *	*	*	*	*	*	*	*	*	*
  	TAP recently submitted comments on the Forest Service's Rangeland 
  and Renewable Resources Planning Act (RPA) draft program for 1995. The 
  RPA draft program is a five year plan which outlines management of Forest 
  Service lands at the highest of three tiers (RPA, Region, Forest).
  	In the past, 1975, 1980, 1985, the Forest Service satisfied the
  National Environmental Policy Act (NEPA) by completing an EIS on the draft
  program. In 1990, however, the Forest Service's draft program had no
  accompanying EIS. This was likely due to the Bush Administration's
  philisophical aversion to programmatic EISs. The Clinton Administration
  has followed Bush's lead on this and has failed to complete an
  accompanying EIS on the '95 draft program. 
  	The filing by TAP serves two purposes by providing: 1) comments on 
  the program, and 2) a petition for an EIS on the program.
  	There is little doubt that the RPA draft program represents a 
  major federal action with significant impacts on the environment 
  necessitating the completion of an EIS. Rather than using NEPA as a 
  device for injunctive relief, TAP would like to reintroduce public 
  participation into the RPA planning process. 
  	Although the Forest Service has requested comments which would
  appear to introduce public participation, they do not offer alternatives
  as required by NEPA. By not offering an alternatives analysis 
  the public cannot fully address the issues discussed in the program. 
  Numerous other procedural shortfalls have resulted from the Forest 
  Service's noncompliance with NEPA.
  	If you are interested in pursuing these actions with TAP please 
  contact Ned Daly ( ned@tap.org ) or Todd Paglia ( tpaglia@tap.org ). 
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  January 17, 1996
  United States Department of Agriculture
  Forest Service
  RPA Staff
  201 14th Street, S.W. 
  Washington, DC 20250 
  Re: Comments on the 1995 RPA Program and Petition for an EIS 
  Dear Sir/Madam:
       We are writing on behalf of the Center For Study of
  Responsive Law's Taxpayer Assets Project(1) and
  affiliated/cooperating environmental groups regarding the Forest
  Service's 1995 RPA Program.  We request that these comments be
  entered in the agency's official record.  This correspondence
  shall serve as our Petition requesting that the Forest Service
  complete an environmental impact statement ("EIS") on the 1995
  RPA Program.  Please respond to this Petition within the next 60
       The Forest Service's goals, as expressed in its World Wide
  Web Home Page (http://www.fs.fed.us/land/RPA/), are clearly
  laudatory.  We applaud the efforts to attain President Clinton's
  goal of sustainably managing our forests by the year 2000.  Our
  concern, rather, is with the Forest Service's means of
  accomplishing those goals.  For the reasons stated below, we will
  decline to offer comments on the 1995 RPA Program at this time in
  the hopes that a more effective opportunity will be offered
  during the course of completing an EIS.  During the EIS process
  our comments will be far more valuable in the light of the Forest
  Service's alternatives analysis and consideration of cumulative
  impacts.  Only in the context of the EIS process may our
  comments, in concert with the informed comments of other
  interested parties and agencies, be constructive.  While we
  understand that more localized EISs are completed by the Forest
  Service, only the RPA Program provides an opportunity to examine
  broad based ecosystem management and the management of adjoining
  areas that, although subject to individual study, have not been 
  1.  The Center For Study of Responsive Law was established in
  1968 by Ralph Nader and is a nonprofit, research and educational
  organization.  The Tax Payer Assets Project ("TAP") is an
  undertaking of the Center for Study of Responsive Law.  TAP
  focuses its efforts on the management and control of publicly
  owned assets.
  considered as a whole. An EIS on the RPA program would provide this 
  valuable opportunity.
       The agency's Executive Summary of the RPA in its Home Page
  states that "[t]he RPA Program reflects a _significant_ change in
  the way the Forest Service considers and manages natural
  resources."  This dramatic alteration from past practices should
  be subject to thorough study as well as public participation,
  scrutiny, and comment.  The consequences for our national forests
  could not be more clearly at issue than with a new comprehensive
  ecosystem management program such as RPA 1995.  As you are aware,
  the National Environmental Policy Act, 42 U.S.C. § 4321 et seq.,
  requires the completion of an EIS (including several
  opportunities for public participation and comment) where major
  federal action may significantly effect the human environment.(2) 
  The EIS process serves an important purpose as an action forcing
  device intended to make an agency more informed of the
  environmental ramifications of its actions, allowing it to
  consider the effects of its proposal compared to alternatives.(3)
  In addition, it is intended to bring agency conduct related to
  environmental issues into the public domain with NEPA's 
  2.   42 U.S.C. § 4332(2)(C). _See Marsh v. Oregon Natural
  Resources_, 490 U.S. 360, 371 (1989) ("NEPA promotes its sweeping
  commitment to 'prevent or eliminate damage to the environment and
  biosphere' by focusing government and public attention on the
  environmental effects of proposed agency action.") (quoting 42
  U.S.C. § 4321).
  3.   NEPA specifically states that one of the primary purposes of
  an EIS is to consider "alternatives to the proposed action . . .
  ."  42 U.S.C. § 4332(2)(C)(iii). _See also Roosevelt Campobello
  Int'l Park Comm. v. U.S. EPA_, 684 F.2d 1041, 1045-46 (1st Cir.
  1982) ("The primary procedural mechanism embodied in NEPA is the
  requirement that an agency prepare 'a detailed statement'
  discussing, inter alia, 'alternatives to the proposed action', 42
  U.S.C. § 4332(2) (C), requiring an agency to discuss alternatives
  within the EIS serves numerous goals."); _California v. Block_,
  690 F.2d 753, 766 (9th Cir. 1982) ("NEPA requires a 'detailed
  statement . . . on . . . alternatives to the proposed action . .
  . .'") (quoting 42 U.S.C. § 4332(2)(C)); _Monroe County
  Preservation Council, Inc. v. Volpe_, 472 F.2d 693, 699-700 (2d
  Cir. 1972).
  requirements for circulation and comment on EISs and other
  environmental documents.(4)  These important purposes will be 
  ignored if the Forest Service fails to comply with NEPA by
  shuttling the 1995 RPA Program around the act's specific
  requirements.  The RPA has previously been subject to an EIS in
  1975, 1980, and 1985.  Considering the dramatic changes proposed
  for RPA 1995, NEPA requires that an EIS be completed.  In
  addition to the clear statutory duty, the Forest Service is also
  under a continuing duty pursuant to the Stipulation entered into
  with the Natural Resource Defense Council to prepare an EIS on
  the RPA Program.(5)   
       RPA 1995 is precisely the kind of program to which NEPA
  application was intended.  It clearly  involves a major federal
  action and the existence of  significant environmental impacts is
  equally obvious.  As the Forest Service made apparent in its
  Executive Summary of the program: "[RPA 1995] is an approach to
  natural resource management that will require an unprecedented
  measure of both willingness and ability--a willingness to move
  beyond traditional techniques, strategies, and perspectives, and
  an ability to focus on a broad range of environmental and social
  values, and to consider changes through space and time."  The
  scope, innovation, and potential impact of the program as well as
  the strong public interest values involved, i.e., the interest of
  the public in the management of its national forest lands,
  require that the program be brought out of the agency's closet
  into the sunlight provided by NEPA's open and thorough EIS
  4.   _North Buckhead Civic Assn. v. Skinner_, 903 F.2d 1533, 1540
  (11th Cir. 1990) ("Most importantly, the detailed EIS also serves
  as a springboard for public comment and incorporates the critical
  views of other federal, state, and local agencies. The document
  offers these bodies notice of the program's expected
  environmental consequences and the opportunity to plan and
  implement corrective measures in a timely manner.");
  _Environmental Defense Fund, Inc. v. Hoffman_, 566 F.2d 1060,
  1072 n.19 (8th Cir. 1977) ("We recognize that the comment stage
  is of critical importance in the decisionmaking process under
  5.   Stipulation Agreement between the Natural Resources Defense
  Council, the Department of Agriculture, and the National Forest
  Products Association, U.S. District Court for the District of
  Columbia, CA No. 74-585, January 17, 1975.
       We are not unique in coming to this conclusion.  Documents
  obtained through FOIA requests indicate that the Forest Service
  staff came to the same conclusion.  The RPA position paper
  prepared by the RPA staff with input from the Office of General
  Council determined that the program would not require an EIS,
  which on its own is a specious assertion, but it went on to note
  that using the program as:
            the vehicle for establishing official policy which
       would result in or substantially alter agency programs, or
            the formal plan which would prescribe alternative uses
       of federal resources, upon which future Agency actions would
       be based, or
             a vehicle for implementing a specific policy or plan,
       _could shift the RPA Program to a major federal action.
       A formal EIS process would then become advisable_.(5)
  USDA attorneys echoed this concern in a similarly obtained memo
  discussing the 1990 RPA (attached as Exhibit C).  The memo
            Because the Forest Service has changed the nature of
       the decision being made in the Program, NEPA compliance must
       be reassessed in light of the new circumstances. . . . [T]he
       legal risk associated with not preparing an EIS is
  The RPA Program is clearly subject to NEPA and the EIS
  requirement as the Forest Service's own attorneys have attested. 
  The Program is a significant action and it formulates a
  definitive policy of ecosystem management and attaining President
  Clinton's goal of sustainable management by the year 2000.  It
  serves nobody's interest to try to avoid the requirements of NEPA
  and waste time, resources, and money in litigation.  In addition,
  the Clinton Administration has a great interest in avoiding an 
  5.   RPA - NEPA Consideration, 1995 RPA Program, Prepared by RPA
  Staff and Office of General Council, at 4 (emphasis added).
  6.   U.S. Department of Agriculture Internal Memorandum, 1990 RPA
  and NEPA Obligations, at 1-2 (emphasis added).
  anti-environmental position so close to an election year.  The
  environment is one of the Clinton Administration's strong points
  and the value in keeping the RPA behind closed doors away from 
  public input and scrutiny, is not worth the risk due to the
  appearance, and rightly so, of not caring about properly dealing
  with something as important as the overarching strategy for
  managing our highly valued forest lands.
       It is important to note that NEPA applies even if the impact
  of RPA 1995 is intended to be an entirely positive action from an
  environmental perspective.  The purpose of NEPA is to determine
  the environmental consequences, negative or positive.  The point
  is producing accurate environmental information which goes
  through NEPA's public notice and comment requirements and
  provides a basis for environmentally informed agency
  decisionmaking.  A proposal may seem environmentally beneficial,
  but only further study and analysis will provide the agency and
  the public with completely accurate information, and this is what
  the courts insist upon.  Consider the Eleventh Circuit's decision
  in _National Wildlife Federation v. Marsh_.  The court stated in
  the context of a supplemental EIS "that even if post-EIS changes
  in a project are beneficial to the environmental impact, if those
  changes are significant, a supplemental statement is required . .
  . ."(7)  In a case raising similar issues, the First Circuit
  believed that the environmental documentation was too cursory and
  there was no firm basis on which to determine whether the change
  would be environmentally positive or negative and by how much. 
  The court stated that "a supplement[al EIS] would describe the
  magnitude of the change in likely environmental harms."(8)  Thus,
  the EIS requirement has been consistently used to resolve any
  probable doubts about an action's impacts regardless of the
  agency's intent or hope that it will benefit environmental
  7.   _National Wildlife Federation v. Marsh_, 721 F.2d 767, 782
  (11th Cir. 1983)(emphasis added).
  8.   _Massachusetts v. Watt_, 716 F.2d 946, 951 (1st Cir. 1983).
       Federal regulations promulgated by CEQ, which are binding on
  all agencies,(9) similarly are concerned with all significant
  impacts.  In determining what is meant by the term "significant,"
  as that word is used by CEQ under NEPA, an evaluation must be
  made of the context and intensity of the project or program.  40
  C.F.R. § 1508.27.  The intensity of the action or new information
  is determined by examining "[i]mpacts that may be both beneficial
  and adverse."  Id. at § 1508.27(b)(1) (emphasis added).  The
  regulations state:  "A significant effect may exist even if the
  Federal agency believes that on balance the effect will be
  beneficial."  Id.  (emphasis added).  Thus, according to CEQ's
  current regulations, the EIS requirement is to be fulfilled where
  significant actions occur impacting the environment, whether the
  significant effect is intended or thought to be environmentally
  positive or negative.
       The courts and CEQ have focused on NEPA's purpose of
  ensuring that an agency examine the best data possible in order
  to make informed environmental choices, regardless of the
  agency's intent.  These interests would be served by the
  completion of an EIS, and NEPA requires such.  The 1995 RPA
  Program is a significant federal action aimed at improving
  management of the nation's forest lands.  Only an EIS, however,
  with full public comment and the participation of other agencies,
  will satisfy the Forest Service's obligations under NEPA.  The
  EIS process will bring the 1995 RPA Program out into the light
  and allow the Forest Service to receive input from a variety of
  informed persons and organizations, while serving the additional
  purpose of providing the public with a forum to express their
  views on what options presented by the Forest Service best serve
  the national interest.  
  9.   _See Robertson v. Methow Valley Citizens Council_, 490 U.S.
  332, 354 (1989) ("In 1977, President Carter directed that CEQ
  promulgate binding regulations implementing the procedural
  provisions of NEPA.") (citing Executive Order No. 11991, 3 C.F.R.
  § 123) (1977)). _See also Andrus v. Sierra Club_, 442 U.S. 347,
  358 (1979) (holding that "CEQ's interpretation of NEPA is
  entitled to substantial deference."). 
       Therefore, we respectfully request that the Forest Service
  put the 1995 RPA Program through the required NEPA process in
  order to comply with that statute's mandate and ensure that the
  Forest Service has considered all the possible alternatives and
  the most accurate information in formulating its 1995 RPA
  Program.  Again, this is an important matter for us and our
  affiliated/cooperating environmental groups.  We believe that the
  law and sound public policy, to say nothing of the Clinton
  Administration's standing in the environmental community,
  requires that the 1995 RPA Program be subject to the full NEPA
       January 17, 1996
       ________________________      ________________________
       Todd J. Paglia                Edward J. Daly
       Attorney                      Public Policy Analyst
       Center for Study of           Center for Study of 
            Responsive Law                Responsive Law
       Taxpayer Assets Project       Taxpayer Assets Project
       P.O. Box 19367                P.O. Box 19367
       Washington, DC 20036          Washington, DC 20036   
       (202) 387-8030                (202) 387-8030
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